Andrew E. Blanche, Jr., and Cynthia D. Blanche - Page 18

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          Ref. Co. was made specific to the terms of the contract at issue            
          therein and would not apply generally to all contracts,                     
          particularly not to a contract for sale as existed in this case.            
               Petitioners also rely on the case of Boykin v. Commissioner,           
          344 F.2d 889 (5th Cir. 1965), for the proposition that, although            
          legal title to real property does not pass to a purchaser under a           
          contract of sale until actual delivery of a deed to the property,           
          a purchaser is vested with equitable title from the date of the             
          contract for sale or from the date the purchaser takes                      
          possession.  Petitioners’ reliance on Boykin is misplaced.  In              
          Boykin, the Court of Appeals for the Fifth Circuit (Fifth                   
          Circuit), to which an appeal in this case would lie, stated:                

               under Texas law, a purchaser of realty ordinarily gets                 
               equitable title with the execution of a binding                        
               contract of sale. [Footnote omitted.] Of course it is                  
               often said that equitable title does not pass where the                
               contract is by its terms expressly conditional.  North                 
               Texas Realty & Construction Co. v. Lary, Tex. Civ.                     
               App., writ refused, 1911, 136 S.W. 843; 52 Tex. Jur. 2d                
               Specific Performance � 48.  And pointing out that "A                   
               contract may be conditional in its inception as to one                 
               party and unconditional as to the other," that text                    
               speaks in terms of the right to specific performance                   
               not being available prior to the time the equitable                    
               title passes.  Ibid.  In other words, the right to                     
               specific performance resting on an equitable right                     
               frequently measures the time the equitable right comes                 
               into being. [Emphasis added.]                                          

          Boykin v. Commissioner, supra at 892.  Under Texas law, a party             
          to a contract is not entitled to specific performance where that            
          party materially breaches the contract by failing to meet a                 

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